United States District Court, E.D. California
FINDINGS AND RECCOMMENDATIONS
M. COTA UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is respondent's unopposed motion
to dismiss (ECF No. 29). Respondent argues the petition
should be dismissed for failure to exhaust state court
State Court Proceedings
appears to be some confusion as to the record of
petitioner's state conviction. In his petition,
petitioner claims to have been convicted of assault and
battery in San Joaquin County Superior Court on January 14,
2019. See ECF No. 1, pg. 1. He alleges to have
submitted an appeal, but his petition states that the appeal
was submitted in 2018, a year prior to his supposed
conviction. Id. at 2. Respondent claims that
criminal proceedings for petitioner's assault and battery
case are still pending and that the January 14, 2019, date is
simply the date the San Joaquin County Superior Court denied
his habeas corpus petition. See ECF No. 29, fn. 1-2.
Regardless, even if petitioner was duly convicted at the time
of filing this petition, for which there is reason to doubt,
it appears that he did not appeal this conviction to the
California Supreme Court. See ECF No. 1, pg. 3.
Current Federal Petition
case proceeds on petitioner's petition filed on February
6, 2019. See ECF No. 1. Petitioner raises the
following grounds for relief:
Ground 1 Petitioner not afforded a phone calls in violation
of Penal Code § 851.5.
Ground 2 Charge of assault and battery lacked Corpus dilecti
where alleged “VICTIM/WITNESS” received no
Ground 3 Prosecution withholds from the Court the fact that
police Report explicitly denies intent and lacks corpus
Ground 4 Successive prosecutions for the same offense that
has already been settled violating Penal Code § 654.
ECF No. 1, pgs. 4-5.
motion to dismiss, respondent argues the petition must be